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Archive for the ‘Employment Law Blog – GA’ Category

Georgia’s Making a List and Long-Term Care Organizations Must Check It Twice

Posted on: May 24th, 2018

By: Will Collins

This month, Georgia’s Governor signed into effect a law implementing a comprehensive background check system in an effort to target and curb elder abuse, placing additional screening, notice, and retention requirements on long-term care organizations as well as presenting liability landmines and safe-harbors that these organizations should be cognizant of moving forward.

Effective October 1, 2019, the Georgia Long-term Care Background Check Program, requires that certain personnel are subject to both a “records check” and a “registry check,” allowing until January 1, 2021 for organizations to either submit a records check application or evidence showing satisfactory completion of a records check within the last twelve months for these personnel to the Department of Community Health (“DCH”).

The records check and registry check take substantial steps beyond Georgia’s current name-based single state criminal background check, expanding required screenings to include checks of the GCIS and FBI fingerprint databases, Georgia Nurse’s Aide Registry, Sexual Offender Registry, and the Federal List of Excluded Individuals and Entities. The Background Check Program goes further, expanding the registry check to any state where an individual resided for the previous two years when the individual has been a Georgia resident for less than two years.

Covered Organizations

The Background Check Program applies to Assisted Living Communities, Personal Care Homes, Home Health Organizations, Intermediate Care Homes, Hospice Providers, Nursing Homes, Skilled Nursing Facilities, and Adult Day Care Facilities.

Covered Personnel

The Background Check Program covers both owners active in operations as well as any applicant or current employee with direct access, which is defined as any position that will routinely:

  • Have contact with patients, residents, or clients including face to face interactions, hands-on physical assistance, and monitoring, reminding, or other stand-by activities;
  • Require the person to be alone with patient, resident, or client property; or
  • Have access to patient financial information, ranging from check books and debit cards to bank records and brokerage accounts

This includes housekeepers, maintenance personnel, dietitians, as well as any volunteer with similar access. Though the Background Check Program excludes certain types of contractors, it covers personnel that are contracted for a role “directly related to providing services to a patient, resident, or client of the facility.”

Record Retention and Notice Requirements

The Background Check Program requires that covered organizations maintain a personnel file for each employee, which shall be available for inspection and review by “appropriate enforcement agencies,” and at a minimum must include “evidence of each employee’s satisfactory determination, registry check, and licensure check.”

Organizations must also include a conspicuous notification on an application form that a state and national background check is required as a condition of employment and comply with the notification process established for denial of employment or adverse employment action based on unsatisfactory determination during the screening, including providing individuals the right to appeal the determination.

Liability and Safe Harbors

The good news for organizations covered by the Background Check Program is that when a denial of employment or an adverse employment action is based on a good faith attempt to comply with the screening requirements, the Program offers protection from damages or a claim, demand, cause of action, or proceeding of any nature.

Compliance with the Background Check Program similarly offers organizations both a “rebuttable presumption of due care” in negligent hiring or negligent retention claims or immunity from negligent hiring claims if certain conditions are met.

However, failure to comply with the Background Check Program’s requirements not only will subject an organization to civil monetary penalties, but may also act as evidence that the organization fell below the standard of care in negligence-based claims.

Take Away

We will closely monitor this issue as DCH develops regulations implementing the Background Check Program and can help you ensure your organization is prepared for these changes in Georgia law. For those with employees outside of Georgia, the attorneys in our Labor and Employment National Practice Section are well versed in state and industry specific screening requirements and regulations, so let us know if we can assist you assess compliance or litigate claims arising in this area.

If you have any questions or would like more information, please contact Will Collins at [email protected].

Recent Cases Remind Georgia Employers to Update Restrictive Covenant Agreements

Posted on: November 6th, 2017

By: Amy C. Bender

Many employers, in an effort to protect their valuable personnel and information, require employees to sign agreements containing restrictive covenants, which may include covenants not to compete, not to solicit employees or customers, or not to disclose confidential information. Georgia’s statute on restrictive covenants (O.C.G.A. § 13-5-80 et seq.), which was passed only a few years ago, generally is viewed as being pro-employer. It provides clear guidance on what types of limitations and language courts will consider reasonable and enforceable, and it allows courts to “blue pencil” (mark through) provisions that do not comply in order to give effect to the remainder of the agreement and achieve what the parties intended. The statute, however, applies only to agreements entered into on or after May 11, 2011.

As some recent Georgia Court of Appeals cases (Burson v. Milton Hall Surgical Associates, LLC and CMGRP, INC. v. Gallant) remind us, any agreements signed before that date will be interpreted according to principles developed through “common law” (case law). Under common law, restrictive covenants by default were disfavored and considered an illegal restraint of trade unless the employer could show they were reasonable. This often proved to be a difficult task for employers since the cases were confusing and at times inconsistent. Importantly, courts also did not have blue-penciling power; if even one part of a covenant was not enforceable, the whole covenant failed. Burson and CMGRP, while both filed several years after the enactment of Section 13-5-80, involved agreements that the employees had signed before the statute’s effective date. As a result, the agreements were analyzed under the old common law.

These cases serve as a good reminder to Georgia employers to review their restrictive covenant agreements to make sure they are up-to-date. If employers have any agreements that were signed before May 11, 2011, we recommend preparing and having employees sign new agreements that comply with the statute. FMG’s Labor and Employment Law team can assist your organization in reviewing current agreements, preparing new agreements, and representing you in disputes regarding agreements.

If you have any questions or would like more information, please contact Amy Bender at [email protected].

Employee Claim is Scattered, Smothered, and Covered by Waffle House Arbitration Agreement

Posted on: October 19th, 2017

By: Brad Adler and Will Collins

A recent Georgia Court of Appeals case not only reinforced that state law permits the Federal Arbitration Act (“FAA”) to control arbitration agreements, but also illustrated that state law broadly interprets and defines claims arising from employment when determining whether a claim is covered by an arbitration agreement. In Waffle House, Inc. v. Pavesi, 2017 Ga. App. LEXIS 442, No. A17A1281 (October 4, 2017) the Georgia Court of Appeals held that an employee’s personal injury claims for negligent hiring, supervision, and retention of a co-worker were all covered claims subject to mandatory arbitration under the arbitration agreement signed by the employee because: (1) the agreement showed intent to be governed by the FAA and that intent was not destroyed by merely referencing that the agreement is governed by Georgia law; and (2) the agreement covered the claims arising out of employment and, under Georgia law, this language is interpreted broadly such that “nothing more than a causal connection is required to show that a claim arose out of that relationship.”

In October of 2015, the Waffle House franchise where the complainant, Brian Mikeals, worked was re-purchased from the franchisee by Waffle House, Inc. At that time, all employees were required to re-apply for non-probationary employment and complete on-boarding paperwork, including an arbitration agreement. Mikeals entered into the arbitration agreement on November 6, 2015 and again on November 14, 2015, due to a problem in the Waffle House computer system requiring employees to complete the paperwork for a second time.

In December of 2015, Mikeals suffered a severe injury at work after a co-worker placed an illegal substance in his drink. After Mikeals’ court appointed guardian initiated this suit, Waffle House filed an emergency motion to compel arbitration. The trial court denied the motion; however, the Court of Appeals reversed.

First, where the agreement stated that it “should be construed in a manner consistent with the principles and provisions of the Federal Arbitration Act … [T]his Agreement shall be governed by and interpreted in accordance with the laws of the State of Georgia” the Court of Appeals found that the language demonstrated the parties’ intent to be bound by the FAA. Contrary to the trial court, the Court of Appeals concluded that the passing reference to a Georgia choice of law provision did not transform the intent of the parties to be subject to the Georgia Arbitration Code. Instead, the court emphasized that Georgia law permits the parties to agree to arbitrate claims and elect that such arbitration will be governed by the FAA.

Second, the court reinforced the broad application and coverage of claims arising from an employment relationship. Here, the arbitration agreement covered all claims “arising out of any aspect of or pertaining in any way to [Mikaels’] employment” and included specific language listing tort claims as covered. Before even discussing that the claims in this case were tort claims that the agreement expressly covers, the court emphasized that it has a long history of broadly including claims arising from a special relationship, requiring “nothing more than a causal connection . . . to show that a claim arose out of that relationship.” According to the court, the only claims that do not arise out of an employment relationship are those “which do not have any relationship to an employee’s work or relationship to the employer.” So, the bottom line is that this decision reinforces the need to be deliberate and wise in drafting an arbitration clause and further highlights a tendency in many courts to view an arbitration provision with a wide lens.

If you have questions or would like more information, please contact Brad Adler at [email protected] or Will Collins at [email protected].

Federal Circuit Scorecard – Title VII & Sexual Orientation Discrimination

Posted on: October 13th, 2017

By: Michael M. Hill

A Georgia case is in the running to be the one the Supreme Court uses to resolve the question of whether Title VII of the Civil Rights Act of 1964 (which prohibits employment discrimination on the basis of sex and certain other characteristics) also includes discrimination on the basis of sexual orientation. The Supreme Court is widely expected to take on this issue at some point, but no one knows exactly when or which case it will be.

In Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), a former hospital security guard alleged she was harassed and otherwise discriminated against at work because of her homosexual orientation and gender non-conformity.  While the trial court dismissed her case, the Eleventh Circuit Court of Appeals partially reversed.  The Eleventh Circuit held that Evans should be given a chance to amend her gender non-conformity claim, but it affirmed dismissal of her sexual orientation claim.

The issue, in most federal circuits, is a distinction between (1) claims of discrimination on the basis of gender stereotypes (e.g., for a woman being insufficiently feminine), which the Supreme Court has held is discrimination based on sex, and (2) claims of discrimination based on sexual orientation, which all but one federal circuit has held is not discrimination based on sex.

At present, this is how things stand now:

  • In the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin), sexual orientation discrimination does violate Title VII.
  • In every other federal circuit, sexual orientation discrimination does not violate Title VII.
  • But no matter where you are, the U.S. Equal Employment Opportunity Commission (EEOC) takes the position that sexual orientation discrimination does violate Title VII.

To make matters more confusing, the full court of the Second Circuit (which covers New York, Connecticut, and Vermont) is considering whether to affirm its past position that sexual orientation is not protected by Title VII or to join the Seventh Circuit. In that case, the EEOC of course is arguing that sexual orientation is a protected category, but the U.S. Department of Justice has filed an amicus brief to argue that sexual orientation is not protected.  In the words of the Department of Justice, “the EEOC is not speaking for the United States.”

The long and short of it is that, until the Supreme Court weighs in, employers need to be mindful of the federal law as interpreted in their circuit, while also understanding that the EEOC enforces its position nationwide whether or not the local federal circuit agrees with it.

If you have any questions or would like more information, please contact Michael M. Hill at [email protected].

Whistling While You Work: Nurses’ Complaints about Internal Procedures Not Protected Under Georgia Whistleblower Act

Posted on: August 15th, 2017

By: Robyn M. Flegal

In late June 2017, the Georgia Court of Appeals held that expressions of general safety concerns do not rise to the level of activity protected by Georgia’s Whistleblower Statute – no matter how well-founded or well-intended.  The court reached its conclusion after considering a retaliation action brought by two nurses who were terminated after they voiced concerns to their supervisors about the way a Georgia healthcare provider staffed its shifts (one of the nurses raised her issues after a patient attempted suicide). The hospital, however, cited failure of the nurses to perform their assigned shifts as the reason for their terminations.

Georgia’s Whistleblower Statute prohibits public employers from (1) retaliating against a public employee for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency; or (2) retaliating against a public employee for objecting to, or refusing to participate in, any activity, policy, or practice of the public employer that the public employee has reasonable cause to believe is in violation of or noncompliance with a law, rule, or regulation.

The Court decided that the trial court properly granted summary judgment to the defendant healthcare provider because the nurses’ complaints concerned only internal operating procedures. The women’s whistleblower action failed because they were unable to demonstrate that they disclosed a violation of a law, rule, or regulation to a supervisor or objected to participating in an activity they thought violated the same.

Public employers should be well aware of Georgia’s Whistleblower Statute and what constitutes protected activity thereunder. For more information, contact Robyn Flegal at [email protected].